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20110�74
<br />DEED OF TRUST
<br />Loan No: 0428844947 {COnt111Ued) Page 10
<br />expenses of Lender and third parties relating to inspectfng the Real Property, environmental review, Utle policies and
<br />endorsements (or tiUe searches, abstrads of tiUe or legal opinions of title where applicable), and monitoring the
<br />payment of property taxes, and any govemmental taxes, fees and recording costs relating to this deed.
<br />ARBITRATION AOREEMENT. Arhltratlon - Binding Arhitration. Lender and each party to this agreement hereby agree,
<br />upon demand by any party, to submit any Dispute to binding arbitration in accordance with the terms of this Arbitration
<br />Program. Arbitration may be demanded before the institution of a judicial proceeding, or during a judicial proceeding,
<br />but not more than 60 days after service of a complaint, third party complaint, cross-claim, or any answer thereto, or
<br />am amendment to any of such pleadings. A"Dispute" shall inGude any dispute, Gaim or controversy of any kind,
<br />whether in contrad or in tort, legal or equitable, now existing or hereafter arising, relffiing in any way to any aspect of
<br />this agreemant, or any related agreement incorporating this Arbitration Program (the "Documents"), or any renewal,
<br />extension, modification or refinancing of any indebtedness or obligation relating thereto, including without limitatlon,
<br />their negotiation, execution, collateral'¢ation, administration, repayment, modification, extension, substltution,
<br />formation, inducement, enforcement, defautt or terminatlon. DISPUTES SUBMITTED TO ARBITRATION ARE NOT
<br />RESOLVED IN COURT BY A JUDGE OR JURY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE PARTIES
<br />IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
<br />ANY DISPUTE ARBITRATED PURSUANT TO THIS ARBITRATION PROGRAM.
<br />A. Goveminn Rules. Any arbitration proceeding will (i) be govemed by the Federal Arbitration Act (TiUe 9 of the United
<br />States Code), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and
<br />(ii) be conducted by the American Arbitration Association ("AAA"), or such other administrator as the parties shall
<br />mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the claim or
<br />counterclaim is at least $1,000,000.00 exGusive of Gaimed interest, arbitration fees and casts, in which case the
<br />arbitration shall be conducted in accordance with the AAA's optional procedures for large, complex commercial
<br />disputes (the commeraal dispute resolution procedures or the optional procedures for large, complex commercial
<br />disputes are referred to herein, as applicable, as the "Rules"). If there is any inconsistency between the terms hereof
<br />and the Rules, the terms and procedures set forth herein shall conVol. Arbitration proceedings hereunder shall be
<br />conducted at a locatfon mutually agreeable to the parties, or if they cannot agree, then at a location selected by the
<br />AAA in the state of the appiicable substantive law primarily goveming the Note. Any parry who fails or refuses to
<br />submit to arbitration following a demand by any other party shall bear ell costs and expenses incurred by such other
<br />party in compelling arbitration of any Dispute. Nothing contained herein shalt be deemed to be a waiver by any parry
<br />that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or any similar applicable state law.
<br />B. No Waiver of Provisional Remedles. Self-Help and Foreclosure. The arbitration requirement does not limit the right
<br />of any parry to (i) foreclose against real or personal property collateral; (ii) exercise self-help remedies relating to
<br />collateral or proceeds of collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such as
<br />replevin, injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any
<br />arbftratlon pro�eding. This exdusion does not constitute a wafver of the right or obligation of any party to submit eny
<br />Dispute to arbitratlon or reference hereunder, inGuding those arising from the exercise of the actions detailed in
<br />sections (i), (ii) and (iii) of this paragraph.
<br />C. Arbitrator Quallflcations and Powers. Any arbitration proceeding in which the amount in controversy is
<br />$5,000,000.00 or less will be decided by a single arbitrator selected according to the Rules, and who shell not render
<br />an award of greater than $5,000,000.00. Any Dispute in which the amount in controversy exceeds $5,000,000.00
<br />shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must
<br />actively participate in all hearings and deliberations. Every arbitrator must be a neutral pradicing attomey or e retired
<br />member of the state or federal judiciary, in either case with a minimum of ten years experience in the substantive law
<br />applicable to the subJect matter of the Dispute. The arbitretor will determine whether or not an issue is arbitratable and
<br />will give effect to the statutes of timitation in determining any claim. In any arbitration proceeding the arbftrator will
<br />decide (by documents only or with a hearing at the arbitrator's discretion) any pre-hearing motions which are s(milar to
<br />motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all
<br />Disputes in accordance with the applicable substantive law and may grant any remedy or relief that a court of such
<br />state could order or grant wfthin the scope hereof and such ancillary relief as is necessary to make effective any award.
<br />The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such
<br />other accion as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil
<br />Procedure, the applicable stata rules of civil procedure, or other applicable law. Judgment upon the award rendered by
<br />the arbitrator may be entered in any court having jurisdiction. The institutlon and maintenance of an action for judicial
<br />relief or pursuit of a provisional or ancillary remedy shall not constitute a wafver of the right of any parly, including the
<br />plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief.
<br />D. Discoverv. In any arbitration proceeding discovery will be permitted in accordance with the Rules. All discovery
<br />shall be expressly Iimited to matters directly relevant to the Dlspute being arbitrated and must be completed no later
<br />than 20 days before the hearing date. Any requests for an eMension of the discovery periods, or any discovery
<br />disputes, will be subject to final detertnination by the arbitrator upon a showing that the request for discovery is
<br />essential for the party's presentation and that no altemative means for obtaining information is available.
<br />E. Ciass Proceedlnns and Consoiidations. No party hereto shall be entiUed to join or consolidate disputes by or against
<br />non-parties in any arbitration, or to include in any arbitration any dispute as a representative or member of a class, or to
<br />act in any arbitretion in the interest of the general public or in e private attomey general capacity. As used herein,
<br />"non-parties" shall mean all persons and entities except Lender and the parly(ies) executing this agreement or any
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